Gustaveson v. Otis — 27 N.Y.S. 280

Majority

p. 280

GUSTAVESON v. OTIS et al.

(Supreme Court, General Term, First Department.

January 12, 1894.)

Headnote

Pleading—Motion to Make Mobe Definite and Certain.

Where the complaint in an action for use and occupation describes the premises as “in the city of New York, situated on the north side of 139th street, east side of Rider avenue, and west side of Morris avenue,” a motion to make it more definite and certain as to the description win be granted. •

Appeal from special term, New York county.

Action by Edward Gustaveson against Ira L. Otis and William H. Gorsline, as copartners, to recover the sum of $150 for the use and occupation by defendants of certain property in the city of New York, of which the plaintiff was the tenant and occupant. Defendants moved for an order requiring plaintiff to make his complaint more definite and certain by stating therein when the alleged lease was made by the plaintiff to the defendants, whether such lease was in writing or verbal, and the terms of said alleged lease, and by giving a definite description of the premises covered by said alleged lease; and the defendants will ask for such other or further order or relief in the premises as to the court shall seem meet, with costs. This motion was denied, and defendants appeal. Reversed.

The complaint is as follows:

The plaintiff complains of the defendants, and respectfully shows to this •court that, at all the times hereinafter mentioned, the defendants were co-partners in trade, under the name of Otis & Gorsline; that heretofore, and at all the times hereinafter mentioned, this plaintiff was the tenant and occupant of certain premises in the city of New York, situated on the north side of 139th street, east side of Rider1 avenue, and west side of Morris avenue; that heretofore, and during the period on and between April 1, 1892, and the 1st day of February, 1893, the defendants occupied certain portions of the premises above described for the purpose of storage for certain sewer pipes by permission of this plaintiff, and as his tenant; that the fair and reasonable value of the use of the said premises for that period was the sum of one hundred and fifty dollars; that, though duly demanded, no part of the same has been paid. Wherefore, plaintiff demands judgment against the de

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fendants for the sum of one hundred and fifty dollars, with interest thereon from the 1st day of February, 1893, together with the costs and disbursements of this action.

Argued before VAN BRTJNT, P. J., and O’BRIEN and PARTNER, JJ.

G-. A. Strong, for appellants.

A. H. Smith, for respondent.

So much of the motion as asks that the complaint should be made more definite and certain, by including a •definite description of the premises alleged to have been occupied, should have been granted. The order should be reversed, and motion granted to this extent, with $10 costs and disbursements, to abide the event.